REGINA v ANDREW TERRANCE WHITING [2002] NSWSC 827

New South Wales Supreme Court

CITATION : REGINA v ANDREW TERRANCE WHITING [2002] NSWSC 827 FILE NUMBER(S) : SC 70114 OF 2001 HEARING DATE(S) : 6 September 2002 JUDGMENT DATE : 6 September 2002

REGINA

PARTIES : v

ANDREW TERRANCE WHITING JUDGMENT OF : Levine J

P Barnett (Crown) COUNSEL : D Dalton (Accused) S E O'Connor (Crown) SOLICITORS : D J Humphreys (Accused) CATCHWORDS : Murder charged - manslaughter (unlawful and dangerous act) plea accepted - domestic argument - kitchen knife - alcohol and drugs -genuine remorse and contrition - special circumstances Regina v Barlow, Levine J, unreported, 25 August 1998 CASES CITED : Regina v Fahda [1999] NSWCCA 267 Regina v Israil [2002] NSWCCA 255 DECISION : See paragraphs 29 and 30

DJL:1 Revised IN THE SUPREME COURT OF NEW SOUTH WALES criminal DIVISION

JUSTICE DAVID LEVINE

FRIDAY 6 SEPTEMBER 2002

70114 OF 2001 REGINA v ANDREW TERRANCE WHITING

JUDGMENT (Murder charged – manslaughter (unlawful and dangerous act) plea accepted – domestic argument - kitchen knife - alcohol and drugs –genuine remorse and contrition – special circumstances) 1 The offender, Andrew Terrance Whiting, on 17 June 2002 in this Court at Albury, was indicted for that on 8 September 2000 at Wagga Wagga he did murder Louise Gail Morgan. To that indictment he pleaded not guilty to murder but guilty to manslaughter. The plea of guilty to manslaughter was accepted by the Crown in discharge of the indictment. 2 On that occasion in Albury the Crown tendered the Crown brief, the lengthy record of interview in video form and transcript, a record of a walk-through in video form and transcript, the forensic evidence and the committal proceedings transcript. 3 Also on that occasion a note from the offender was tendered as exhibit 1 in which he expressed his feelings for the victim, her family and the general public in terms of remorse for the pain and grief caused to these people, and expressed his sorrow. 4 The basis of the plea of guilty to manslaughter was unlawful and dangerous act. The death of the deceased was caused by a single knife wound. It arose in circumstances with which so frequently this Court is confronted, namely domestic violence in which alcohol at least, and often alcohol and drugs, are a component. 5 Despite the frequency with which this Court has to deal with such matters each is determined on its merits. As a matter of justice it has to be. The range of circumstances is so variable with respect to the crime of manslaughter for which the maximum penalty of 25 years has been prescribed by Parliament, that each case must be judged on its particular facts. 6 By reason of the circumstances involving but two participants, one of whom is now deceased, the situation arises where the determination of the dynamics of what occurred is difficult. The relationship of some three to four years between the offender and the deceased was characterised by violence. This is evidenced by the material in exhibit G for example, which relates to the offender being charged with assault in 1998 with the victim being the deceased, and two charges, one of which was finalised, of the offender being the victim of an assault by the deceased. Of the last mentioned two matters the first was in 1998. The second gave rise to a charge of malicious wounding in May 2000 which was not brought to a conclusion otherwise than by the death of the deceased. 7 On the evening in question I am satisfied beyond reasonable doubt that a violent altercation exploded between the two participants. I am satisfied beyond reasonable doubt that the deceased first attacked the offender with part of a beer bottle causing extensive but principally superficial injuries, as disclosed in exhibit B which are the photographs taken of the offender at the time of his arrest. I am satisfied that the wound inflicted by the deceased on the offender accounted for a great deal of the blood naturally identified as his and specifically in the kitchen where that event occurred. 8 At some time thereafter I am satisfied on considering the record of interview that it was the deceased who approached the offender in the bedroom carrying a knife and some glass. A piece of glass consistent with the offender's account as being in the hand of the deceased was not located in the bedroom, but other parts of a broken bottle were located elsewhere. 9 I am satisfied beyond reasonable doubt that the deceased confronted the offender so armed and that the offender thereupon embarked, while sitting on the bed, in an attempt to save himself from what he perceived to be a real risk, not merely by reason of the weapons being held, but by reason of prior experience. I am satisfied beyond a reasonable doubt that that attempt involved what is described as rolling around on the bed, or wrestling or struggling, and an attempt by the offender to disarm the deceased. 10 At some point the knife, which I have found to have been brought into the room by the deceased, entered her body in the fashion described in the autopsy report bringing about a left anterior chest wall oblique stab wound, the track of that wound being from left to right, front to back and downwards. It was fatal. 11 The issue is the dynamics of the infliction of that wound. I am satisfied beyond reasonable doubt that the early accounts given by the offender as to the taking of the knife from the deceased represents the reality. This is reinforced by the recitation in the history given to Dr Niellsen where the offender is recorded as saying that he told the police that he got the knife off her and stabbed her, but that that is what he assumed happened, rather than what he could actually remember. In the records of interview that was a proposition that the offender was unable to accept. Nonetheless, I am satisfied beyond reasonable doubt that that is what occurred. 12 Upon that occurring so quickly and in such a violent environment, any stage at which the offender was, as it were, defending himself had come to an end and the situation was one of the presentment of a knife as an unlawful and dangerous act. 13 I accept that it was not the intention of the offender to kill, I accept that it was not the intention of the offender to inflict grievous bodily harm, but at the point where the struggle that permitted the knife to come into his hands the situation, from the legal characterisation point of view, changed with the ghastly outcome no doubt arising from the continuing physical dynamics in the struggle in that bedroom that brings everyone to this Court today. To that extent I am satisfied beyond reasonable doubt that the evidence supports the plea to manslaughter on the basis to which I have referred. 14 The taking of human life is, of course, appalling. From the point of view of the law that can never be overlooked. From the point of view of the law, the fact that a human life was taken by a domestic knife is always considered with the utmost gravity. People simply do not realise how deadly that everyday piece of household equipment can be. The community must be told, alas, again and again that the law views very seriously the employment of such an implement. In summary, the crime of manslaughter involved the use of a domestic knife and I am satisfied beyond reasonable doubt that it was committed by the offender in circumstances of a sudden, quick explosion of domestic violence. 15 The victim of the offender's conduct was 33 years of age at the time of her death. I acknowledge the statement, admitted as exhibit H, prepared by Dr Roger Blake in respect of the effect of Miss Morgan's death upon her family. That grief and distress are natural and understood. 16 The offender was born on 5 June 1965 and does have criminal antecedents involving violence in terms of assault, malicious injury, offences reflecting a problem with alcohol since his mid teens. 17 Dr Niellsen, forensic psychiatrist, prepared a report dated 8 August this year, exhibit 2, that expresses the opinion that the offender suffers from alcohol dependence and abuse, and a personality disorder with dependent traits. At the time of the commission of the crime an abnormality of mind was likely and that the contribution of alcohol consumption would have exaggerated the effect of his underlying anxiety disorders. 18 I mention this and I am satisfied on the possibilities that that which Dr Niellsen reports is, in fact, the case as a factor to be taken into account when considering the questions of general and personal deterrence with respect to this offender in the light of the authorities cited to me by counsel for him: Regina v Fahda [1999] NSWCCA 267; Regina v Israil [2002] NSWCCA 255. 19 This, however, does not detract from the fact being brought home to the offender that he must pay a price for violence induced by alcohol when he knew that the consumption of alcohol could lead to it. 20 The evidence of the records of interview, the phone call made by the offender to the ambulance, the statements made by the offender overheard by neighbours, exhibits 1 and 3 being his communications to the court, the report of Dr Niellsen, exhibit 4 the letter from Reverend David King of the MRRC Chaplaincy Service, all satisfy me in favour of the offender that he should receive the benefit of actual and genuine remorse for what he did, for what happened, and for the life he took. The offender should also receive the benefit for having pleaded guilty at the earliest time and thus providing what is known as the utilitarian component. 21 These two factors combined warrant a discount of one third and it can be taken that the sentence that I, in due course will impose, will reflect that allowance (compare Regina v Barlow, Levine J, unreported, 25 August 1998) 22 He has been in custody since 8 September 2000. Submissions have been made that there are special circumstances as provided for by the sentencing laws insofar as the law provides that a non-parole period must not be less than three quarters of the term of the sentence unless the court determines that there are special circumstances for it being less. 23 I am satisfied as to the following special circumstances. First, the offender has been serving, and will be likely to continue to serve, his period in custody under non-association protection. I am satisfied in the offender's favour in that regard that hitherto he has received threats to his life from members of the community within the gaol who are part of that wider community of which the deceased was a member. This constitutes an extraordinarily high additional burden of custody. 24 Secondly, the offender, I am satisfied in his favour, clearly has had an alcohol problem which has been the principal factor that gave rise to his criminal conduct in the past and which played some part in the horrific events of 8 September 2000. In that regard it is clear, not only that the offender requires extended and special supervision in close supervision, but also, I am persuaded, recognises that fact. 25 Third, the offender suffers from the psychiatric disorders in respect of which Dr Niellsen has reported, equally is extended attention and treatment required in this regard. 26 Having referred to these matters I have not overlooked the law's requirement that a sentence, being appropriate in all the circumstances, must be imposed. The taking of a human life in circumstances that constitute the crime of manslaughter with the use of a domestic knife, even in circumstances attended by alcohol, attended by a history of domestic violence between the parties in which one or other have historically been the victim, is one that requires punishment by custody. 27 In relation to this offender I have no doubt that he is remorseful and will live with the consequences of what happened on that night for the rest of his life. Nothing the law can do can turn back the clock, nor restore the deceased to her family, nor indeed to this offender. 28 As I have remarked, whilst the nature of the crime is common, a knife in a situation of domestic violence, circumstances of each domestic environment to domestic environment differ, as do the dynamics and facts of each case. I accept that the conditions as referred to by Dr Niellsen played a part in the criminality in terms of affecting its seriousness, but not to the point intimated by counsel for the offender that his incarceration hitherto is enough. By that I mean that the seriousness of the criminality to some extent on the probabilities as affected by Niellsen factors, as I will call them, but not to a very great extent and certainly not to the point where two years custody could fairly be viewed as an appropriate penalty. 29 Andrew Terrance Whiting, you are convicted of manslaughter. You are sentenced to imprisonment for a term of five years and four months to commence on 8 September 2000 and expire on 7 January 2006. By reason of the special circumstances to which I have referred, I fix a non-parole period of three years to date from 8 September 2000 to expire on 7 September 2003. 30 I direct the following conditions will apply to your period on parole: that you undergo such alcohol counselling and treatment as directed by the authorities, and that you undergo such psychiatric and psychological treatment as may be directed by the authorities. **********